Top Supreme Court lawyer: Whitaker appointment as acting attorney general has created a 'constitutional crisis'

One of the most prominent attorneys in the country told the U.S. Supreme Court that the appointment of acting Attorney General Matthew Whitaker has caused a "constitutional crisis."

"It is a constitutional crisis even if we are distracted from and dulled to it," Tom Goldstein, co-founder of SCOTUSBlog, wrote in a brief with the court.

Goldstein filed the brief on behalf of his client Barry Michaels, in a case about whether prohibitions on the possession of guns for convicted felons are lawful. Goldstein brought the case to the court in June.

Legal experts have said the motion against Whitaker is unlikely to succeed because it amounts to an attempt to settle a constitutional question in a case that's not related to the underlying issue.

One of the most prominent attorneys in the country told the U.S. Supreme Court that the appointment of acting Attorney General Matthew Whitaker has caused a "constitutional crisis."

"It is a constitutional crisis even if we are distracted from and dulled to it," Tom Goldstein, co-founder of SCOTUSBlog and a partner at the law firm Goldstein & Russell, wrote in a brief with the court.

The aggressive, 30-page brief blasts the Justice Department for "inaugural-crowd-level math" and accuses the president of a "power grab" aimed at limiting the reach of special counsel Robert Mueller's Russia probe.

"Yes, the Court can blink at that reality, decline to act, and move on," Goldstein wrote. "But history will regret that it did."

President Donald Trump appointed Whitaker to succeed ousted Attorney General Jeff Sessions earlier this month. Legal scholars immediately raised questions about the constitutionality of Whitaker's appointment because he has not been confirmed by the Senate. At least half a dozen court battles on the issue have been brought in federal courts throughout the country. Some of those cases have been dismissed.

Goldstein wrote Wednesday that the appointment could jeopardize the Justice Department's investigation into any links between Trump associates and the Russian government, which Whitaker is now overseeing. Before he was named acting attorney general, Whitaker criticized the inquiry and called for it to be limited.

Now, Whitaker "can put those opinions into practice while the President himself bitterly attempts to undermine public confidence in the investigation almost daily," Goldstein wrote.

Among other things, Whitaker's appointment could mean that Trump won't have to sit down for an interview with Mueller, unless the acting attorney general personally approves a subpoena, Goldstein wrote. Even if Whitaker were to approve a subpoeana, experts have said that any decision Whitaker makes could later be challenged by the intended target.

Name change sparks legal argument

Goldstein filed the brief on behalf of his client Barry Michaels, in a case about whether prohibitions on the possession of guns for convicted felons are lawful. Goldstein brought the case to the court in June.

Before Trump appointed Whitaker on Nov. 7, the case was named Barry Michaels v. Jeff Sessions. The name was automatically changed to substitute in Whitaker's name after he was tapped.

Goldstein asked the court to name the case Barry Michaels v. Rod Rosenstein in a Nov. 16 motion. He argued that, by law, Rosenstein, the deputy attorney general, automatically became the acting attorney general after Sessions' departure. He also argued that the Appointments Clause of the Constitution requires that the president nominate a person who was confirmed by the Senate, which Whitaker has not been.

Legal experts have said the motion against Whitaker is unlikely to succeed because it amounts to an attempt to settle a constitutional question in a case that's not related to the underlying issue. The justices have not agreed to hear arguments in the gun case. But the motion is being taken seriously. Goldstein is one of only 10 attorneys to have won more than one major case before the high court since 2000.

Under the Attorney General Succession Act, the deputy attorney general is the first in line to succeed the attorney general. The Justice Department has argued that it is relying on a different statute, the Federal Vacancies Reform Act, which permits the president to name any senior DOJ official to the role.

Government attorneys signed off on the appointment in a 20-page memo earlier this month.

Solicitor General Noel Francisco cited that memo on Monday in a brief to the justices urging them not to take up the issue of Whitaker's appointment. He also said that any ruling on the case could be irrelevant before it is even handed down, if the president nominates a permanent replacement for Sessions.

The government also pointed to what it said were 160 instances in which a non-Senate-confirmed official served as a Cabinet secretary, all of which were before 1860.

Goldstein said Wednesday that the DOJ had done bad math, and that the actual number was 191. But, he said, all those examples were irrelevant to Whitaker.

Need for prompt ruling

In most of those cases, the official who was being replaced was out only temporarily, or left voluntarily. Never, Goldstein wrote, had a president "forced out a Cabinet Secretary and replaced him with a hand-picked, non-confirmed appointee from outside the Department's chain of authority."

And Goldstein agreed that the question could soon become irrelevant, writing that the "question will probably evade this Court's review forever if it doesn't act very soon." But that was a reason for the court to rule promptly on Whitaker's appointment, not to let the issue percolate, he said.

"There is no way to resurrect it if this Court later concludes in a separate case that Mr. Whitaker's appointment was illegal or unconstitutional. Again, who would make that argument? How would they do it?"

The special counsel itself would be prohibited from making such an argument, he said. And it is unlikely that any of Mueller's targets would challenge Whitaker's appointment because they are likely to want the probe narrowed, not expanded.

Several other major cases against Whitaker's appointment are pending before lower courts. More than a dozen states and the District of Columbia joined onto a suit in Maryland earlier this month demanding that Whitaker's appointment be scrapped. And last week, Democratic Sens. Richard Blumenthal of Connecticut, Mazie Hirono of Hawaii and Sheldon Whitehouse of Rhode Island filed suit in Washington.

Goldstein expressed doubts about whether those cases would be resolved in a timely fashion, if at all, and urged the justices to void Whitaker's appointment promptly because of the urgency of the matter.

"The Framers saw Donald Trump coming almost 250 years ago," Goldstein wrote. "They had King George to work from."